Mohinder Singh v. Niranjan Singh & Anr.

Mr.Arun Jain, Senior Advocate with Mr.Jaivir S.Chandail, Advocate, for the appellant. **** RANJIT SINGH, J. Mohinder Singh appellant has filed this Execution Second Appeal against the order dismissing his objections filed before the Executing Court concerning the decree in favour of the Niranjan Singh (respondent No.1), his real brother. Respondent No.1 had filed a suit for redemption of a property mortgaged to respondent No.2, Ajit Singh Bedi, which was allowed on 2.3.1994. This property mortgaged was in possession of Suresh Kumar and so the warrant of possession was ordered to be made effective against him. The objection was filed on the ground that the partition suit filed on 2.5.1966 by Jagnandan Singh against Execution Second Appeal No.1 of 2010 (O&M) : 2 : Balbir Singh etc. was still pending, where joint written statement had been filed by the appellant-objector alongwith his brothers Kulwant Singh and Niranjan Singh respondents. They had claimed partition of 1/4th share of common ancestor. The plea of the appellant is that he was unaware about the legal process in the partition suit and believed that his brothers were pursuing the same. He claims to have requested his brother Niranjan Singh respondent and others to partition the property, but the same was not done. Appellant-objector had prayed to his brother to give him some property in the city so that he could live there. He claims that Niranjan Singh allowed him to occupy House No.B-27/181, Lahori Gate, Patiala measuring 48 sq. yards. This was found to be insufficient for the appellant to stay. He accordingly states that a month prior to the filing of the present objections, he occupied the adjoining house bearing No.B-27/180, measuring 53 sq.yards, which, according to him was lying vacant. Respondent-Niranjan Singh had then informed the appellant that he got this house redeemed from Ajit Singh, which was occupied by Suresh Kumar. Suresh Kumar has lost the litigation even before this court and so the house was lying vacant. Respondent-Niranjan Singh accordingly questioned the appellant as to how he had occupied this portion. The appellant in turn requested his brother that he has come to know that they had sold more property than their share and had not given due share to the appellant. The appellant accordingly made out before his brother Niranjan Singh that he will file a separate case for his share and even the properties, now occupied by him, were much less his share. Respondents Niranjan Singh and Kulwant Singh thereafter had Execution Second Appeal No.1 of 2010 (O&M) : 3 : registered a criminal complaint against the appellant leading to FIR No.15 dated 21.1.2007 under Sections 447, 379, 506 and 34 IPC for occupying House No.B-27/181. The appellant further pleads that it was revealed to him that Niranjan Singh respondent had falsely got a gift deed registered in favour of Gurjot Singh son of Jasvir Singh son of Kulwant Singh on

14.6.1999 and kept this fact concealed from him. Claiming that he was in possession of the properties, noted above, being a co-sharer and owner of the same, the appellant objected to the warrant of possession issued in the names of Ajit Singh and Suresh Kumar by stating that the same could not be executed against the appellant. Niranjan Singh respondent filed reply and contested the maintainability of the objection petition. He also challenged the locus standi of the appellant to file this petition. He would plead that this has been done only to delay the execution of a decree which is in his favour and is passed on 2.3.1994. It is pointed out that the suit titled Jagnandan Singh Vs. Balbir Singh etc.dated 2.5.1966 was disposed of on 15.7.1968 by passing a preliminary decree and by appointing a Local Commissioner to suggest the mode of partition. The passing of the final decree is pending. It is stated that the appellant is not in possession of suit property and has filed this objection petition by concocting a story. A reference is also made to family partition dated

3.5.1957 which was arrived at between appellant, respondent- Niranjan Singh and Kulwant Singh. Property No.1609, thus, fell into the share of the appellant-objector and remaining properties came to the share of respondent Niranjan Singh and Kulwant Singh. Writing to this effect was exhibited by the appellant himself in the rent Execution Second Appeal No.1 of 2010 (O&M) : 4 : petition filed by him in a rent petition titled Mohinder Singh Vs. Ram Nath decided on 20.12.1979. It is accordingly pleaded that the appellant wanted to grab the property of the decree holder. It is also pointed out that objector Mohinder Singh had signed as a witness on the mortgage deed, thus, admitting the ownership of respondent Niranjan Singh, who has a decree in his favour. The appellant, Mohinder Singh, had stated in his examination-in-chief that the present house fell into the share of Niranjan Singh in family partition, a fact which he was now concealing. The objection petition filed by the appellant was dismissed and so to the appeal. He has accordingly filed this second appeal. Counsel for the appellant would contend that the courts ought to have framed the issue even though the appellant was a third party and only then his objection could have been decided. In support, he has placed reliance on Gram Panchayat, Hassanpur Vs. Jagdish Chand & Ors., 2008(1) Civil Court Cases 364 (P&H). Counsel has also referred to Pohlo Ram Sharma & Ors. Vs. Narinder Singh Randhawa, 2008(1) Civil Court Cases 801, wherein it is held that the objections if not totally frivolous, then the court is to frame issues and permit the parties to lead evidence and then decide the objections. The primary plea raised by the counsel for the appellant is that partition suit is still pending and it is yet to be determined as to which portion of this joint property would fall to the share of a particular owner. The counsel accordingly submits that the appellant is entitled to retain possession of the property occupied by him till the Execution Second Appeal No.1 of 2010 (O&M) : 5 : partition suit is decided and the objections filed by him on this ground could not have been summarily dismissed as has been done and these ought to have been decided by framing issues and after giving opportunity to the parties to lead evidence. This is so pleaded on the basis of the judgments, referred to above. These submissions would not impress me. Even if it is conceded that the partition suit is still pending, then the decree which is in favour of the respondent cannot be stalled for execution on an objection made by the appellant, who was a third party. The courts, in my view, have rightly declined the prayer of the appellant to frame issues in this regard and then decide his objections. It can be said that the objections filed by the appellant were frivolous. Earlier the objections were filed by Suresh Kumar. At that stage, the appellant had appeared in this case as a witness and had admitted that the respondent Niranajn Singh decree holder was his brother and the house mortgaged with Ajit Singh, respondent No.2, was owned by the decree holder and it had come to the share of respondent No.1 in family partition. As already noticed, appellant Mohinder Singh was also a witness to the mortgage deed. He, thus, cannot now be heard to urge that he was not aware of the proceedings as he has tried to project or that the portion of a house to which this decree relates was lying vacant which he had occupied. Once he himself appeared as a witness while the objections filed by Suresh Kumar earlier occupant were being considered, he cannot turn around and say that he is occupying the house, when as a witness he conceded the ownership and claim of respondent Niranjan Singh, his own brother. The approach and the objections raised by the appellant are totally Execution Second Appeal No.1 of 2010 (O&M) : 6 : frivolous. These have apparently been filed to delay the proceedings of the execution. There is no merit in either of the pleas raised by the appellant and these have rightly been rejected. There is no merit in this appeal and it is dismissed in limine. January 29, 2010 ramesh ( RANJIT SINGH ) JUDGE